Gay refugees cannot be sent home and told to hide their sexuality

8 July 2010 by

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010) – Read Judgment

The Supreme Court has ruled that the government’s “Anne Frank” policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights..

HJ and HT are both homosexual men and had been persecuted in their home countries – Iran and Cameroon respectively – after their sexual orientation had been discovered.

The court criticised the controversial policy, practised since 2006, of telling gay asylum seekers who feared prosecution in their home countries to hide their sexuality upon their return, rather than granting them asylum.  In the Court of Appeal the men’s barrister had referred to this as an “Anne Frank” policy, in that, like Anne Frank, the men would be safe if they hid from authorities but not if they didn’t.

In March 2009 the Court of Appeal dismissed HJ and HT’s appeal on the basis that the consequences for the men would be “reasonably tolerable”.

The Supreme Court unanimously allows an appeal from the Court of Appeal, holding that the ‘reasonable tolerability’ test applied by the Court of Appeal is contrary to the Convention and should not be followed in  the future. HJ and HT’s cases are remitted for reconsideration in light of the detailed guidance provided by the Supreme Court.

One particularly illuminating paragraph, which may in future be quoted as a “what is a sofa bed” moment, was from Lord Rodger, who (albeit accepting these were “trivial stereotypical examples”), summed up the life of a male heterosexual in British society (thank you to Joshua Rozenberg for pointing this out):

just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.

Denial of the right to “be who he is”

The following is taken from the Supreme Court press summary:

There was no dispute that homosexuals are protected by the Convention, membership of the
relevant social group being defined by the immutable characteristic of its members’ sexuality
[paras [6] and [10] per Lord Hope and para [42] per Lord Rodger].

To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord
Rodger].

The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment. Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope].

Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger].

One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country ‘on condition’ that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52]-[53] and [65] per Lord Rodger].

The ‘reasonable tolerability’ test applied by the Court of Appeal must accordingly be rejected
[para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger]. There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues. In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger].

Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed),
at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be
applied by the lower tribunals and courts in determining claims for asylum protection based on
sexual orientation.


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